Deckmyn v Vandersteen
|Deckmyn v Vandersteen|
|Submitted 8 April 2013|
Decided : 3 December 2014
|Full case name||Johan Deckmyn and Vrijheidsfonds VZW vs Helena Vandersteen, Christiane Vandersteen, Liliana Vandersteen, Isabelle Vandersteen, Rita Dupont, Amoras II CVOH and WPG Uitgevers België|
|Case Type||Reference for a preliminary ruling|
|Language of Proceedings||Dutch|
|Nationality of parties||Belgium|
|Procedural history||Reference of the Court of Appeal of Brussels (Belgium)|
P. Cruz Villalón
|definition of parody in the Copyright Directive (Directive 2001/29/EC)|
Johan Deckmyn and Vrijheidsfonds VZW vs Helena Vandersteen, Christiane Vandersteen, Liliana Vandersteen, Isabelle Vandersteen, Rita Dupont, Amoras II CVOH and WPG Uitgevers België is a request for a preliminary ruling by the European Court of Justice, requested by the Court of Appeal (Dutch: Hof van Beroep) of Brussels (Belgium). The reference was made in a case of Vlaams Belang politician Johan Deckmyn who had copied a cover of Spike and Suzy (Dutch: Suske en Wiske), in which he had positioned Daniël Termont, the mayor of Ghent. The rights holders of the comic had sued Deckmyn for copyright infringement. Because the interpretation of EU law was involved in the case, the Belgian court made the reference.
The reference concerns what conditions must be met for a derivative work to be considered a parody, which may be allowed according to EU law within the Copyright Directive. While the European Court of Justice has not announced its decision, its advocate general has given his (advisory) opinion on 22 May 2014 in which he held that the concept "parody" must be interpreted autonomously within the Union and that parody required a certain form of mocking and originality. In his opinion, much freedom in interpretation is given to the individual countries.
On 9 January 2011, during the New Year's reception of the city of Ghent, the Flemish nationalist political party Vlaams Belang handed out 2000 calendars with a cover largely copied from the cover of the 1961 Spike and Suzy comic De Wilde Weldoener (the Wild Benefactor). In the derivative image, money was distributed by Daniël Termont, the mayor of Ghent, whose image replaced that of Lambic, the original character. The persons collecting the money had dark-coloured skin and were wearing scarfs. Vlaams Belang politician Deckmyn said he wanted to highlight that in Ghent tax payer's money was mainly channelled to non-Ghent people, reducing the quality of life in the city as a whole. He indicated that "a child could see it was a parody" of the original Spike and Suzy cover.
The publisher of Spike and Suzy, WPG Uitgevers, said there had been no contact regarding the cover with them, and that no permission had been given; they dissociated themselves from the text and said that in their opinion the cover was "beyond parody": Willy Vandersteen, the author of the comic, had written in his will that his comics could never be used for political purposes.
Belgian court cases
The Civil Court of the Court of First Instance of Brussels ruled on 17 February in a preliminary injunction on the action that VanderSteen c.s. (the five heirs of Willy VanderSteen and the publishers) had started against Deckmyn and Vrijheidsfonds. The court held that the calendars infringed the Spike and Suzy copyright and that the parody exception did not apply. The vzw Vrijheidsfonds (the association collecting gifts for Vlaams Belang) and Deckmyn were not to distribute the calendars. Both defendants (Deckmyn, case 2011/AR/914 and Vrijheidsfonds, case 2011/AR/915) appealed the verdict to the Court of Appeal in Brussels. In its preliminary decision the 8th Chamber of the Court merged both cases, and ruled that the calendar depicted a discriminating message. It considered that the parody exception existed in Belgian law (copyright law of 1994, Article 22.1.6) and that the EU Infosoc directive allowed such a parody exception (Article 2.5.3.k) and had not explicitly left the definition of parody to national law. The concept of parody had furthermore not been explained by the European Court of Justice, and the court therefore decided to ask three questions of the European court:
- Is the concept of "parody" an independent concept in European Union law?
- If so, which of four suggested characteristics of parody have to be met to determine if a work is a parody?
- Are there additional requirements?
The court stayed proceedings while awaiting the answer of the EU court.
Court of Justice of the European Union
Besides the parties in the conflict, the European Commission and the Kingdom of Belgium also opined, either in writing or during the hearing on 7 January 2014. The Advocate General gave his opinion on 22 May 2014, while the court had not ruled as of July 2014.
Opinion of the Advocate General
The opinion of the Advocate General of the European Court of Justice was delivered on 22 May 2014. He agreed with the Court of Appeal: regarding the first question, the term "parody" is an independent concept, as its definition was not explicitly left to the national law, although there may be a "wide margin of interpretation" left to individual countries.
The court's decision was published on 3 September 2014. The court largely followed the position of the Advocate-General: regarding the first question, the term "parody" is an independent concept, as its definition was not explicitly left to the national law, although there may be a "wide margin of interpretation" left to individual countries. The Advocate General discussed the last two question together and argued that while exceptions to a general rule in EU law should generally be interpreted narrowly, in the exceptions under 2.5.3 a wide margin of interpretation was given to the individual member states and they should give in such a case due regard to evaluation of the fundamental rights of the European Union. He suggested that for a work to be considered a parody, it should evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour and mockery.
Chronology of events
In the table below the events and the involved parties are placed in chronological order.
|1961||Willy Vandersteen writes Spike and Suzy comic "De Wilde Weldoener"|
|28 August 1990||Willy Vandersteen dies||his heirs obtain copyrights|
|9 January 2011||Vlaams Belang politician Deckmyn hands out a calendar containing a reworked cover of "De Wilde Weldoener"||the cover depicts Ghent mayor Daniël Termont|
|17 February 2011||The court of first instance rules the calendars constitute copyright infringement||the case was started by Vandersteen et al. against Deckmyn and Vlaams Belang associated organisation Vrijheidsfonds VZW|
|15 April 2011||Deckmyn and Vrijheidsfonds appeal the decision to the Brussels Court of Appeal|
|8 April 2013||The court of appeal asks the European Court of Justice (ECJ) for a preliminary ruling regarding the "parody exception"||When in doubt about the interpretation of EU law, the court is allowed to ask for such a ruling.|
|7 January 2014||The ECJ holds an oral hearing||The parties are heard; input is received also from the European Commission and Belgium (orally or in written form)|
|22 May 2014||ECJ Advocate-General gives his opinion on the case||The opinion serves as advice to the ECJ|
|3 September 2014||ECJ answers the questions referred for a preliminary ruling||The answers are binding on the requesting court, and constitute a "factual precedent" for other EU courts.|
|Future date||The Court of Appeal of Brussels rules||The verdict may be appealed only regarding points of law in cassation|
- "Rechter moet oordelen over 'Suske en Wiske'-parodie van Vlaams Belang". De Standaard (in Dutch). 22 May 2014. Retrieved 2 June 2014.
- "Arrest" (PDF). Hof van Beroep te Brussel (in Dutch). 8 April 2013. Retrieved 4 June 2014.
- "Suske en Wiske dagvaarden Vlaams Belang". Het Nieuwsblad (in Dutch). 14 January 2011. Retrieved 2 June 2014.
- "Vlaams Belang veroordeeld voor Suske en Wiske-kalender". Gazet van Antwerpen (in Dutch). 22 February 2011. Retrieved 2 June 2014.
- "Conclusie van Advocaat-Generaal P. Cruz Villalón". Europa.eu. 22 May 2014. Retrieved 4 June 2014.
- JUDGMENT OF THE COURT (Grand Chamber), Case C‑201/13. Preliminary ruling. Retrieved 23 April 2015.
- "Nationale rechter moet oordelen over 'Suske en Wiske'-parodie Vlaams Belang". Het Laatste Nieuws (in Dutch). 22 May 2014. Retrieved 18 June 2014.
- Carl Baudenbacher. "The implementation of decisions of the ECJ and of the EFTA court" (PDF). Texas International Law Journal. 40: 384–416.
- "Hof van Cassatie van België". Federale Overheidsdienst Justitie (in Dutch). Retrieved 15 July 2014.